Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP

Posts Categorized: Commercial

Posted: December 9, 2013

Failure to Give Required Notice of Termination a Failure to Perform a Condition Precedent to Entitlement to Termination Payments

On December 3, 2013, Justice Demarest of the Kings County Commercial Division issued a decision in Sutton v. E&B Giftware LLC, 2013 NY Slip Op. 33019(U), holding that the failure to give a contractually required notice of termination was a failure to perform a condition precedent to the plaintiff’s entitlement to post-termination payments. In Sutton, the plaintiff... Read more »

Posted: December 8, 2013

Agreement to Pay Bonus Unenforcable Without Formula for Computing the Amount of the Bonus

On November 27, 2013, Justice Kornreich of the New York County Commercial Division issued a decision in Gallotti v. Advance Watch Co. Ltd., 2013 NY Slip Op. 33009(U), dismissing a breach of contract claim because there was no standard for determining the amount the plaintiff was owed under the agreement. The plaintiff in Gallotti entered into... Read more »

Posted: December 7, 2013

First Department Applies De Facto Merger Doctrine in Reversing Grant of Motion to Dismiss

On November 14, 2013, the First Department issued a decision in ePlus Group Inc. v. SNR Denton LLP, 2013 N.Y. Slip Op. 07566, applying the de facto merger doctrine. ePlus Group arose “out of the alleged breach of a lease for IT equipment and services entered into by plaintiff and the now defunct law firm of Thacher... Read more »

Posted: December 6, 2013

No Negligent Misrepresentation Claim From Arm’s Length Transaction Between Sophisticated Parties

On November 26, 2013, the First Department issued a decision in Zohar CDO 2003-1 Ltd. v. Xinhua Sports & Entertainment Ltd., 2013 N.Y. Slip Op. 07860, affirming a decision finding that there was no “special relationship” between the parties in an arm’s length commercial transaction. In Zohar, the trial court dismissed a negligent misrepresentation claim,... Read more »

Posted: December 5, 2013

First Department Affirms Strict Reading of Rule Requiring Stay and Notice to Retain New Counsel

On November 26, 2013, the First Department issued a decision in Scirica v. Colantonio, 2013 N.Y. Slip Op. 07852, strictly enforcing CPLR 321(c), the rule that provides a thirty-day stay if an attorney is removed from a case. CPLR 321(c) provides: If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any... Read more »

Posted: December 4, 2013

Court of Appeals Clarifies Criteria for Giving Missing Witness Charge

On November 26, 2013, the Court of Appeals issued a decision in DeVito v. Feliciano, Docket No. 195, explaining the criteria for issuing a missing witness charge. DeVito was personal injury litigation, but the Court of Appeals’ decision relates to an issue that affects commercial trials just as much as personal injury trials: the circumstances under... Read more »

Posted: December 2, 2013

IRS Audit Put Taxpayer on Inquiry Notice of Possible Fraud Claim Against Tax Advisor

On November 19, 2013, Justice Friedman of the New York County Commercial Division issued a decision in Chlsea, LLC v. Gramercy Fin. Servs., LLC, 2013 NY Slip Op. 32946(U), dismissing fraud and related tort claims on statute of limitations grounds because the plaintiff was on inquiry notice. In Chlsea, the plaintiff made a tax shelter... Read more »

Posted: December 1, 2013

Real Property Law § 320 Limits Structuring Real Property Transactions as Sales

On November 27, 2013, the Second Department issued a decision in Bouffard v. Befese, LLC, 2013 NY Slip Op. 07925, interpreting Real Property Law § 320’s command that a “deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance... Read more »

Posted: November 30, 2013

Judiciary Law Section 478 Applies Only to Legal Services Provided in New York

On November 27, 2013, the Second Department issued a decision in Gover v. Savyon, 2013 NY Slip Op. 07934, interpreting Judiciary Law § 478 in a situation where an attorney who was not licensed to practice in New York provided legal services both in New York and in another jurisdiction. In Gover, plaintiff, an Israeli attorney not... Read more »